Allahabad High Court
Bhanu Pratap Yadav vs State Of U.P. And 2 Others on 20 July, 2018
Equivalent citations: AIRONLINE 2018 ALL 2469
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 07 1. Case :- WRIT - A No. - 9688 of 2018 Petitioner :- Bhanu Pratap Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi,Mahesh Narain Singh 2. Case :- WRIT - A No. - 9816 of 2018 Petitioner :- Niharika And 2 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Saurabh Yadav,Bharat Singh Pal Counsel for Respondent :- C.S.C.,Avneesh Tripathi 3. Case :- WRIT - A No. - 10283 of 2018 Petitioner :- Manoj Kumar Respondent :- State Of U.P. 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 4. Case :- WRIT - A No. - 10284 of 2018 Petitioner :- Sonal Devi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 5. Case :- WRIT - A No. - 10310 of 2018 Petitioner :- Pankaj Kumar Tripathi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 6. Case :- WRIT - A No. - 10548 of 2018 Petitioner :- Nampal Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Jitendra Rana,Veer Pal,Vikul Panwar Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 7. Case :- WRIT - A No. - 10759 of 2018 Petitioner :- Ritu Sharma And 4 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Saurabh Yadav,Bharat Singh Pal Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 8. Case :- WRIT - A No. - 11786 of 2018 Petitioner :- Smt. Sunita Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Yadav Counsel for Respondent :- C.S.C.,Avneesh Tripathi,M.N. Singh 9. Case :- WRIT - A No. - 13095 of 2018 Petitioner :- Arvind Kumar Shukla And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Navin Kumar Sharma Counsel for Respondent :- C.S.C.,Avneesh Tripathi 10. Case :- WRIT - A No. - 13540 of 2018 Petitioner :- Saurabh Kumar Mishra Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Saurabh,Manoj Kumar Sharma Counsel for Respondent :- C.S.C.,Avneesh Tripathi 11. Case :- WRIT - A No. - 13543 of 2018 Petitioner :- Brijesh Kumar And 4 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manuvalkya Upadhyay Counsel for Respondent :- C.S.C.,Avneesh Tripathi 12. Case :- WRIT - A No. - 13563 of 2018 Petitioner :- Mohit Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Autar Verma Counsel for Respondent :- C.S.C.,Avneesh Tripathi 13. Case :- WRIT - A No. - 13567 of 2018 Petitioner :- Amit Kumar Singh And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ten Singh Counsel for Respondent :- C.S.C.,Avneesh Tripathi 14. Case :- WRIT - A No. - 13573 of 2018 Petitioner :- Ramkesh Panchal And 2 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Saurabh,Manoj Kumar Sharma Counsel for Respondent :- C.S.C.,Avneesh Tripathi 15. Case :- WRIT - A No. - 13581 of 2018 Petitioner :- Harendra Kumar Chaudhary And 23 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi 16. Case :- WRIT - A No. - 13582 of 2018 Petitioner :- Sanjesh Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Amit Kumar Gaur Counsel for Respondent :- C.S.C.,Avneesh Tripathi 17. Case :- WRIT - A No. - 13604 of 2018 Petitioner :- Manoj Kumar Giri And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,Avneesh Tripathi 18. Case :- WRIT - A No. - 13609 of 2018 Petitioner :- Surabhi Sharma Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Brij Lal Shukla Counsel for Respondent :- C.S.C.,Avneesh Tripathi 19. Case :- WRIT - A No. - 13626 of 2018 Petitioner :- Yogesh Kumar Jain And Another Respondent :- State Of U.P.And Another Counsel for Petitioner :- Sanjay Kumar Jain,Babu Lal Ram Counsel for Respondent :- C.S.C.,Avneesh Tripathi 20. Case :- WRIT - A No. - 13633 of 2018 Petitioner :- Anil Kumar And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rahul Saxena,Surya Shanker Pandey Counsel for Respondent :- C.S.C.,Avneesh Tripathi 21. Case :- WRIT - A No. - 13660 of 2018 Petitioner :- Shailesh Chandra Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shyam Shankar Mishra Counsel for Respondent :- C.S.C.,M.N. Singh 22. Case :- WRIT - A No. - 13664 of 2018 Petitioner :- Nidhi Srivastava Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Gautam Baghel,D.K.Ojha Counsel for Respondent :- C.S.C.,M.N. Singh 23. Case :- WRIT - A No. - 13671 of 2018 Petitioner :- Yogesh Kumar And 7 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,M.N. Singh 24. Case :- WRIT - A No. - 13688 of 2018 Petitioner :- Abhishek Tiwari And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Pathak Counsel for Respondent :- G.A. 25. Case :- WRIT - A No. - 13689 of 2018 Petitioner :- Smt. Sandhya Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamleshwar Singh,S.M.Ayaz Ali Counsel for Respondent :- C.S.C.,M.N. Singh 26. Case :- WRIT - A No. - 13702 of 2018 Petitioner :- Vivek Pandey And 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Pathak Counsel for Respondent :- C.S.C.,M.N. Singh 27. Case :- WRIT - A No. - 13706 of 2018 Petitioner :- Ravikant Verma Respondent :- State Of U.P. And Another Counsel for Petitioner :- Neeraj Srivastava Counsel for Respondent :- C.S.C.,M.N. Singh 28. Case :- WRIT - A No. - 13708 of 2018 Petitioner :- Neetu Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kamalendra Kumar Maurya Counsel for Respondent :- C.S.C.,M.N. Singh 29. Case :- WRIT - A No. - 13710 of 2018 Petitioner :- Smt. Preeti Rai Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjeev Kumar Rai Counsel for Respondent :- C.S.C.,M.N. Singh 30. Case :- WRIT - A No. - 13714 of 2018 Petitioner :- Mohammad Zuber Khan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Abhishek Dwivedi,Gaurav Tiwari Counsel for Respondent :- C.S.C.,M.N. Singh 31. Case :- WRIT - A No. - 13716 of 2018 Petitioner :- Sanjay Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shravana Kumar Yadav Counsel for Respondent :- C.S.C.,M.N. Singh 32. Case :- WRIT - A No. - 13720 of 2018 Petitioner :- Nidhi Singh Kushwaha Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Santosh Kumar Singh Counsel for Respondent :- C.S.C.,M.N. Singh 33. Case :- WRIT - A No. - 13723 of 2018 Petitioner :- Amit Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Suresh Kumar Gupta,Vashishtha Narayan Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh 34. Case :- WRIT - A No. - 13745 of 2018 Petitioner :- Ravindra Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manoj Kumar Tripathi,Vinod Kumar Tirpathi Counsel for Respondent :- C.S.C.,M.N. Singh 35. Case :- WRIT - A No. - 13746 of 2018 Petitioner :- Amit Kumar Srivastava And 9 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,M.N. Singh 36. Case :- WRIT - A No. - 13752 of 2018 Petitioner :- Bindu Gupta Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Rajesh Kumar Pandey Counsel for Respondent :- C.S.C.,M.N. Singh 37. Case :- WRIT - A No. - 13754 of 2018 Petitioner :- Neeraj Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Bhuvnesh Kumar Singh,Abhishek Tiwari Counsel for Respondent :- C.S.C.,M.N. Singh 38. Case :- WRIT - A No. - 13759 of 2018 Petitioner :- Girish Chandra Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Amar Singh Counsel for Respondent :- C.S.C. 39. Case :- WRIT - A No. - 13765 of 2018 Petitioner :- Lalit Mohan And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Neeraj Srivastava Counsel for Respondent :- C.S.C.,M.N. Singh 40. Case :- WRIT - A No. - 13769 of 2018 Petitioner :- Manish Awasthi Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sanjay Srivastava,Rajkishore Singh Counsel for Respondent :- C.S.C.,M.N. Singh 41. Case :- WRIT - A No. - 13770 of 2018 Petitioner :- Dinesh Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Raj Singh Counsel for Respondent :- C.S.C.,M.N. Singh 42. Case :- WRIT - A No. - 13786 of 2018 Petitioner :- Rajeev Kumar Chaurasia Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Narendra Kumar Chaubey Counsel for Respondent :- C.S.C.,M.N. Singh 43. Case :- WRIT - A No. - 13795 of 2018 Petitioner :- Divy Shakti Tripathi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Shachindra Kumar Mishra Counsel for Respondent :- C.S.C.,M.N. Singh 44. Case :- WRIT - A No. - 13800 of 2018 Petitioner :- Sarvesh Kumar Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Dutta Pandey Counsel for Respondent :- C.S.C.,M.N. Singh 45. Case :- WRIT - A No. - 13801 of 2018 Petitioner :- Manoj Kumar Yadav And 2 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sunil Kumar Tiwari,Arun Kumar Counsel for Respondent :- C.S.C.,M.N. Singh 46. Case :- WRIT - A No. - 13802 of 2018 Petitioner :- Bos Amar Chand Honhar And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Indra Kumar Singh Counsel for Respondent :- C.S.C.,M.N. Singh 47. Case :- WRIT - A No. - 13803 of 2018 Petitioner :- Nidhi Dwivedi Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ganga Prasad,Vimal Kumar Counsel for Respondent :- C.S.C.,M.N. Singh 48. Case :- WRIT - A No. - 13804 of 2018 Petitioner :- Surendra Kumar And 12 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Pathak Counsel for Respondent :- C.S.C.,M.N. Singh 49. Case :- WRIT - A No. - 13809 of 2018 Petitioner :- Neha Dubey Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Manish Kumar Niranjan Counsel for Respondent :- C.S.C.,M.N. Singh 50. Case :- WRIT - A No. - 13820 of 2018 Petitioner :- Maneesha Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Prem Prakash Yadav,Bijai Nath Yadav Counsel for Respondent :- C.S.C.,M.N. Singh 51. Case :- WRIT - A No. - 13830 of 2018 Petitioner :- Charu Gupta Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Agnihotri Kumar Tripathi,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,M.N. Singh 52. Case :- WRIT - A No. - 13837 of 2018 Petitioner :- Rajeev Kumar Respondent :- State Of U.P. And Another Counsel for Petitioner :- Damodar Singh,Devendra Vikram Singh Counsel for Respondent :- C.S.C.,M.N. Singh 53. Case :- WRIT - A No. - 13838 of 2018 Petitioner :- Vinay Kumar Pandey Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Avadhesh Kumar Upadhyay,Rishi Kant Rai Counsel for Respondent :- C.S.C.,M.N. Singh 54. Case :- WRIT - A No. - 13847 of 2018 Petitioner :- Saurabh Kumar Gupta Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sachchida Nand Tiwari Counsel for Respondent :- C.S.C.,M.N. Singh 55. Case :- WRIT - A No. - 13850 of 2018 Petitioner :- Vipin Kumar Shukla And 5 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Pathak Counsel for Respondent :- C.S.C.,M.N. Singh 56. Case :- WRIT - A No. - 13853 of 2018 Petitioner :- Sangeeta Devi Respondent :- State Of U.P. And Another Counsel for Petitioner :- Mahendra Kumar Singh Chauhan Counsel for Respondent :- C.S.C.,M.N. Singh 57. Case :- WRIT - A No. - 13863 of 2018 Petitioner :- Abha Dwivedi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- R.K. Singh. Rajput Counsel for Respondent :- C.S.C.,M.N. Singh 58. Case :- WRIT - A No. - 13883 of 2018 Petitioner :- Archana Devi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Krishna Mani Counsel for Respondent :- C.S.C.,M.N. Singh 59. Case :- WRIT - A No. - 13891 of 2018 Petitioner :- Hanuman Prasad Pipara Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Rishi Kant Rai,Anil Kumar Singh Bishen Counsel for Respondent :- C.S.C.,M.N. Singh 60. Case :- WRIT - A No. - 13892 of 2018 Petitioner :- Surya Pratap And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Pramod Kumar Singh Counsel for Respondent :- C.S.C.,M.N. Singh 61. Case :- WRIT - A No. - 13894 of 2018 Petitioner :- Sadaf Parveen Siddiqui Respondent :- State Of U.P. And Another Counsel for Petitioner :- Surendra Prasad Mishra,Manish Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh 62. Case :- WRIT - A No. - 13899 of 2018 Petitioner :- Ramniwas Prasad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Anil Kumar Singh Bishen,Agnihotri Kumar Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh 63. Case :- WRIT - A No. - 13925 of 2018 Petitioner :- Brij Bihari Bharti Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Pathak Counsel for Respondent :- C.S.C.,M.N. Singh 64. Case :- WRIT - A No. - 13970 of 2018 Petitioner :- Anuj Dev Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ashwani Kumar Yadav Counsel for Respondent :- C.S.C.,M.N. Singh 65. Case :- WRIT - A No. - 15478 of 2018 Petitioner :- Achal Mohan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Rajesh Kumar Tripathi Counsel for Respondent :- C.S.C.,M.N. Singh 66. Case :- WRIT - A No. - 15299 of 2018 Petitioner :- Sakaldeep Singh Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Krishnaji Khare Counsel for Respondent :- C.S.C.,M.N. Singh Hon'ble Surya Prakash Kesarwani,J.
1. Heard learned counsels for the petitioners, learned standing counsel for the State-respondents and Sri Avneesh Tirpathi, learned counsel for the U.P. Public Service Commission.
2. With the consent of learned counsels for the parties, these writ petitions are being finally heard.
FACTS:
3. By virtue of Advertisement No.A-1/E-1/2018, dated 15.03.2018, applications were invited for appointment of Assistant Teachers (Men/ Women)Computer. Relevant portion of Clause-11 of the Advertisement providing for Educational Qualification for the post of Assistant Teacher (Men/ Women) Computer, is reproduced below:
"11. EDUCATIONAL QUALIFICATION: The candidates must possess Bachelor's Degree from any recognized University or equivalent qualification upto the last date for receipt of On-Line application. This should be mentioned by the candidates in the relevant Column of their On-Line application form. Educational Qualifications for the different subjectwise posts as specified in the relevant service Rules are as follows:-
Sl.No. Name of post Education Qualification
1.
................
.................................
2. ................
.................................
3. ................
.................................
4. ................
.................................
5. ................
.................................
6. Assistant Teacher (Men/Women) Computer (I) B.Tech. / B.E. (in Computer Science) from a recognised University in India.
OR B.Sc. in Computer Science.
OR B.Sc in Computer Application, OR Bachelor of Computer Application or Bachelor's degree with 'A' Level course from NIELIT.
(ii) B.Ed. or equivalent degree from a recognised University in India.
4. There is no dispute that the educational qualification as mentioned in the advertisement is identical to the educational qualification provided under Rule 8 of the Uttar Pradesh Subordinate Education (Trained Graduates Grade) Service Rules, 1983 (hereinafter referred to as 'the Rules 1983') as amended by the Uttar Pradesh Subordinate Education (Trained Graduates Grade) Service (Fourth Amendment) Rules, 2016. For ready reference, clause-18 of Rule 8, is reproduced below:
"8. Academic qualification.- A candidate for direct recruitment to the various posts in the service must possess the following qualifications or as specified by the Government from time to time-
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.
.
.
.
.
.
.
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.(18)
Assistant Teacher (Men/ Women) Computer
(i) B. Tech/ B.E. (in Computer Science) from a recognised University in India Or B.Sc. in Computer Science, Or B.Sc. in Computer Application Or Bachelor of Computer Application Or Bachelor's Degree with 'A' level course from NIELIT"
5. Admittedly, all the petitioners of this batch of writ petitions do not possess degree of either B. Tech./ B.E. (in Computer Science) from a recognised University in India or B.Sc. in Computer Science, or B.Sc. in Computer Application, or Bachelor of Computer Application, or Bachelor's Degree with 'A' level course from NIELIT. They possess degree of Master of Computer Application, except the petitioner of Writ-A No.13891 of 2018 who possesses degree of Master of Science (Computer) and P.G.D.C.A. All the petitioners also possess B.Ed. Degree. Case of the petitioners is that National Council for Teacher Education Regulation Regulations, 2014 provides for minimum qualification for Assistant Teacher (Secondary)/ High School to be Graduate/ Post Graduate from a recognised University with at least 50% marks in either Graduation or Post Graduation or (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education or a recognised institution.
6. On these facts and provisions, the petitioners have set up a case that since they possess higher educational qualification being M.C.A., therefore, they possess eligibility in terms of the aforesaid Regulation and, therefore, they are eligible to apply and appear in the examination pursuant to the aforesaid advertisement dated 15.03.2018.
SUBMISSIONS:-
7. Sri Agnihotri Kumar Tripathi, learned counsel for the petitioner in Writ-A No.9688 of 2018 submits as under:
(i) The petitioners possess M.C.A. Degree which is a Post Graduate Degree which is higher qualification than the B.C.A. The NCTE Regulation provides for qualification to Graduation/ Post Graduation from a recognised University, therefore, the petitioners possess the requisite eligibility to apply pursuant to the advertisement dated 15.03.2018.
(ii) By the judgment dated 10.05.2018 in Writ-A No.11545 of 2018 (Jai Prakash Yadav and 46 others vs. Union of India and 4 others), a Division Bench of this Court has clearly held that "The legislative competence and intent thereof lead to the conclusion that the Parliament has authorized the NCTE to make provisions which have been carefully engrafted in the NCTE Regulations, 2014, which has been duly incorporated by the State Government under the impugned rule. The failure of the Board to timely implement the qualifications prescribed by the NCTE will not dilute or take away the impact of the NCTE Regulations, 2014 which is mandatory. Every rule/regulation of the State Government/Board prescribing qualifications of teachers from pre-school to higher secondary has to abide by the qualifications and norms fixed by the NCTE by virtue of Section 12-A of NCTE Act, 1993."
8. Sri Akhilesh Tripathi, learned counsel for the petitioners in Writ-A No.10548 of 2018 has adopted the arguments as aforenoted and has relied upon a judgment of Hon'ble Supreme Court in the case of Parvaiz Ahmad Parry vs. State of Jammu and Kashmir and others, [(2015) 17 SCC 709 (Para-16)], in which Hon'ble Supreme Court held that if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e. M.Sc.(Forestry) then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant's major subjects in graduation, due to which he was able to do his Masters in Forestry.
9. Other learned counsels appearing on behalf of the petitioners have adopted the arguments as noted above.
10. Learned standing counsel supports the impugned advertisement and the action of the State Government.
11. Sri Aveenash Tripathi, learned counsel for U.P. Public Service Commission submits that the Commission has to complete the recruitment process as per qualification fixed by the State Government.
Discussion and Findings:-
12. I have carefully considered the submissions of learned counsels for the parties.
LEGISLATIVE HISTORY:
13. By virtue of the Constitution 42th Amendment Act, 1976, the subject 'Education' was withdrawn from Entry II (List-II) - State List, and was placed in Entry 25 of List-III - Concurrent List. Thus the Legislative Competence to legislate on the subject "Education" was brought under the Concurrent List. In view of the provisions of Article 246(2) of the Constitution of India, notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule. The Parliament enacted The National Council for Teacher Education Act, 1993 (No.73 of 1993) (hereinafter referred to as 'the Central Act 1993') to provide for the establishment of a National Council for Teacher Education with a view to achieve planned and co-ordinated development of the teacher education system throughout the country, the regulation and proper maintenance of norms and standards in the teacher education system and for matters connected therewith. Section 12A of the Central Act, 1993 as inserted by Act No.18 of 2011 dated 12.10.2011 w.e.f. 01.06.2012, confers power upon the Council to determine minimum standards of education of school teacher which is reproduced below:
"12A. Power of Council to determine minimum standards of education of school teachers.-For the purpose of maintaining standards of education in schools, the Council may, by regulations, determine the qualifications of persons for being recruited as teachers in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate school or college, by whatever name called, established, run, aided or recognised by the Central Government or a State Government or a local or other authority:
Provided that nothing in this section shall adversely affect the continuance of any person recruited in any pre-primary, primary, upper primary, secondary, senior secondary or intermediate schools or colleges, under any rule, regulation or order made by the Central Government, a State Government, a local or other authority, immediately before the commencement of the National Council for Teacher Education (Amendment) Act, 2011 solely on the ground of non-fulfilment of such qualifications as may be specified by the Council: Provided further that the minimum qualifications of a teacher referred to in the first proviso shall be acquired within the period specified in this Act or under the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)."
14. It appears that in exercise of powers conferred under Section 8 of the Central Act, 1993, the Regulation 2014 were framed by the National Council for Teacher Education vide Notification dated 12.11.2014. The First Schedule of the aforesaid Regulation, 2014 reads as follows:
"First Schedule {See Sub-regulation (2) of Regulation (4)} The National Council for Teacher Education (Determination of Minimum Qualification for Persons to be recruited as Education Teachers in Pre-primary, Upper Primary, Secondary, Senior Secondary or Intermediate Schools or Colleges) Regulations, 2014.
LEVEL MINIMUM ACADEMIC AND PROFESSIONAL QUALIFICATIONS
1.Pre-School/Nursery (For children in the age group of 4.6 years) a. (i) Senior Secondary (Class XII or its equivalent) from recognized board with at least 50% marks Or
(ii) Senior Secondary (Class XII or its equivalent) from recognized board with at least 45% marks in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 And;
b. Diploma in Nursery Teacher Education/Pre-School Education/Early Childhood Education Programme (D.E.C.Ed.) of duration of not less than two years, or B.Ed. (Nursery) from National Council for Teacher Education recognized institution.
2. Pre-School/ Nursery followed by first two years in a formal school.
3. Primary and Upper Primary (For Classes I to VIII) Minimum qualifications as laid down by National Council for Teacher Education vide its notification dated 23.08.2010 as amended from time to time issued in exercise of the powers conferred under Sub-section (1) of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009)
4. Secondary/ High School (For Classes IX-X)
(a) Graduate/Post Graduate from recognized University with at least 50% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.
Or
(b) Graduate/Post Graduate from recognized University with at least 45% marks in either Graduation or Post Graduation (or its equivalent) and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.
Or
(c) 4-years degree of B.A.Ed./B.Sc.Ed. from any National Council for Teacher Education recognized institution.
5. Senior Secondary/ Intermediate (For Classes XI-XII)
(a) Post Graduate with at least 50% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution.
Or
(b) Post Graduate with at least 45% marks (or its equivalent) from recognized University and Bachelor of Education (B.Ed.) from National Council for Teacher Education recognized institution {in accordance with the National Council for Teacher Education (Form of application for recognition, the time limit of submission of application, determination of norms and standards for recognition of teacher education programmes and permission to start new course or training) Regulations, 2002 notified on 13.11.2002 and National Council for Teacher Education (Recognition Norms and Procedure) Regulation, 2007 notified on 10.12.2007.
Or
(c) Post Graduate with at at least 50% marks (or it equivalent) from recognized University and B.A.Ed./B.Sc.Ed. form any NCTE recognized institution.
15. The Uttar Pradesh Subordinate Education (Trained Graduates Grade) Service Rules, 1983 deals with the appointment of teachers for secondary schools. Rule 8 of the aforesaid Rules, 1983 was amended by the Uttar Pradesh Subordinate Education (Trained Graduates Grade) Service (Fourth Amendment) Rules, 2016 providing for minimum qualification for Assistant Teachers of different subjects. The relevant portion of Rule 8 of the Rules 1983 is reproduced below:
"8. Academic qualification.- A candidate for direct recruitment to the various posts in the service must possess the following qualifications or as specified by the Government from time to time-
.
.
.
.
.
.
.
.
.
.
.
.(18)
Assistant Teacher (Men/ Women) Computer
(i) B. Tech/ B.E. (in Computer Science) from a recognised University in India Or B.Sc. in Computer Science, Or B.Sc. in Computer Application Or Bachelor of Computer Application Or Bachelor's Degree with 'A' level course from NIELIT"
16. Thus from the provisions of law as aforenoted, it is evident that the minimum prescribed qualification provided under the Rules, 1983 for Assistant Teacher (Men/ Women) Computer is as under:
"Assistant Teacher (Men/ Women) Computer
(i) B. Tech/ B.E. (in Computer Science) from a recognised University in India Or B.Sc. in Computer Science, Or B.Sc. in Computer Application Or Bachelor of Computer Application Or Bachelor's Degree with 'A' level course from NIELIT"
THE ADVERTISEMENT DATED 15.03.2018:
17. The impugned advertisement provides for qualification of Assistant Teacher (Men/ Women) Computer, as under:
"11. EDUCATIONAL QUALIFICATION: The candidates must possess Bachelor's Degree from any recognized University or equivalent qualification upto the last date for receipt of On-Line application. This should be mentioned by the candidates in the relevant Column of their On-Line application form. Educational Qualifications for the different subjectwise posts as specified in the relevant service Rules are as follows:-
Sl.No. Name of post Education Qualification
1.
................
.................................
2. ................
.................................
3. ................
.................................
4. ................
.................................
5. ................
.................................
6. Assistant Teacher (Men/Women) Computer (I) B.Tech. / B.E. (in Computer Science) from a recognised University in India.
OR B.Sc. in Computer Science.
OR B.Sc in Computer Application, OR Bachelor of Computer Application or Bachelor's degree with 'A' Level course from NIELIT.
(ii) B.Ed. or equivalent degree from a recognised University in India.
18. The minimum qualification provided under the advertisement dated 15.03.2018 has no conflict with the Rules, 1983.
19. None of the petitioners of this batch of writ petitions have neither argued nor challenged the constitutional validity of the Rules, 1983 as amended by the 4th Amendment Rules, 2016 or the validity of the Advertisement No.A-1/E-1/2018 dated 15.03.2018.
20. None of the petitioners possess degree of either B. Tech./ B.E. (in Computer Science) from a recognised University in India or B.Sc. in Computer Science, or B.Sc. in Computer Application, or Bachelor of Computer Application, or Bachelor's Degree with 'A' level course from NIELIT. Thus, computer science has not been Graduation subject of any of the petitioners. The petitioners did their Graduation in subject other than the subjects mentioned, i.e. Computer Science. Thus, none of the petitioners were having Computer Science as a major subject in their Graduation. Therefore, it cannot be said that the petitioners are having higher qualification in the same subject/ channel in which they did their Graduation.
21. It is not the case of the petitioners that syllabus of M.C.A. covers the syllabus of B.C.A. Most of the petitioners did their graduation in Arts subjects or Commerce. None of the subjects of prescribed qualification was one of the major subjects in their graduation. The word 'higher' in the present context would mean Masters degree in comparison to graduation degree in the same stream. A person cannot be said to possess higher educational qualification in a particular stream/ subject unless he possesses lower qualification in the same stream or has that subject as a major subject in his graduation. Thus the petitioners being merely M.C.A. do not have higher qualification to fulfil the prescribed qualification under the Rules and the Advertisement.
22. Normal Rule to the concept of "higher qualification" is that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis, but that higher qualification must be through the channel of the prescribed qualification. This rule is subject to an exception that where the Prescription of a particular qualification is found to be relevant for discharging the function of that post and at the same time, the Government is able to demonstrate that for want of said qualification a candidate may not be suitable for the post, even if he possesses a "better" qualification, that 'better' qualification has no relevance with the functions attached with the post.
23. In the case of State of Uttarakhand and others vs. Deep Chandra Tewari and another, [(2013) 15 SCC 557], Hon'ble Supreme Court considered the concept of higher qualification and held as under:
"11. We are conscious of the principle that when particular qualifications are prescribed for a post, the candidature of a candidate possessing higher qualification cannot be rejected on that basis. No doubt, normal rule would be that candidate with higher qualification is deemed to fulfill the lower qualification prescribed for a post. But that higher qualification has to be in the same channel. Further, this rule will be subject to an exception. Where the prescription of a particular qualification is found to be relevant for discharging the functions of that post and at the same time, the Government is able to demonstrate that for want of said qualification a candidate may not be suitable for the post, even if he possesses a "better" qualification but that "better" qualification has no relevance with the functions attached with the post.
12. In the present case, we find the situation falling in this excepted category. As pointed out above, the Assistant Teacher is meant to impart education to students at primary level. For teaching primary students, subjects studied while doing basic B.Ed. Degree would be relevant and appropriate. For teaching such students, B.Ed. with Specialisation in vocational education would be of no use as those students are not imparted vocational education, which is the thrust in the degree obtained by the respondents herein. In the instant case, proficiency in the basic subjects taught at primary level is required and thus vocational training would not serve any purpose. Thus, when we find that in the instant case, essential education qualification is B.Ed. Degree which is prescribed in the relevant rules, having statutory flavour, the action of the Government cannot be faulted with, in rejecting the candidature of the respondents because of the reason that they do not have the qualification, as mentioned in the advertisement viz. B.Ed. Degree simpliciter."
(Emphasis supplied by me)
24. The law laid down by Hon'ble Supreme Court in the case of State of Uttarakhand (supra) and the relevant provisions of law as discussed above, leaves no manner of doubt that the petitioners who admittedly do not possess graduation degree precisely mentioned in the advertisement and the Rules, cannot be said to possess the minimum prescribed qualification under Rules, 1983 and the Advertisement.
25. Neither validity of the Rules, 1983 prescribing minimum educational qualification nor the advertisement prescribing minimum educational qualification are under challenge in the present writ petitions. The advertisement is not in conflict with the Rules, 1983. The entire recruitment process started on issuance of the Advertisement dated 15.03.2018. Therefore, the recruitment process needs to be completed as per terms and conditions of the advertisement and the Rules. No interference can be made at this stage when the examination is scheduled to be held on 29.07.2018. Similar view has been taken by Hon'ble Supreme Court in the case of Prakash Chand Meena and others vs. State of Rajsthan and others, [(2015) 8 SCC 484 (Para-8 and 9)], as under:
"8. Having heard the parties, we have also perused the written submissions filed on behalf of some of them and have perused the judgment of the learned Single Judge ( Prakash Chand Meena vs. State of Rajsthan, 2012 SCC OnLine Raj 1898) and the impugned judgment of the Division Bench (Dinesh Kumar Panwar vs. Suresh Chand, Civil Aspecial Appeal (Writ) No.1181 of 2012, decided on 01.07.2013). In our considered view, the issue noticed at the outset must be decided on the basis of settled law noticed by learned Single Bench that recruitment process must be completed as per terms and conditions in the advertisement and as per rules existing when the recruitment process began. In the present case, the Division Bench has gone to great lengths in examining the issue whether B.P. Ed. and D.P. Ed. qualifications are equivalent or superior to C.P. Ed. qualification but such exercise cannot help the cause of the respondents who had the option either to cancel the recruitment process if there existed good reasons for the same or to complete it as per terms of advertisement and as per rules. They chose to continue with the recruitment process and hence they cannot be permitted to depart from the qualification laid down in the advertisement as well as in the rules which were suitably amended only later in 2011. In such a situation, factual justifications cannot change the legal position that respondents acted against law and against the terms of advertisement in treating such applicants successful for appointment to the post of PTI Gr. III who held other qualifications but not the qualification of C.P. Ed. Such candidates had not even submitted separate OMR application form for appointment to the post of PTI Gr. III which was essential as per the terms of advertisement.
9. The candidates who were aware of the advertisement and did not have the qualification of C.P. Ed. also had two options, either to apply only for PTI Gr. II if they had the necessary qualification for that post or to challenge the advertisement that it omitted to mention equivalent or higher qualification along with qualification of C.P. Ed. for the post of PTI Gr. III. Having not challenged the advertisement and having applied for the other post, they could not have subsequently claimed or be granted eligibility on the basis of equivalence clarified or declared subsequently by the State Government. In the matter of eligibility qualification, the equivalent qualification must be recognized as such in the recruitment rules or Government order existing on or before the initiation of recruitment process. In the present case, this process was initiated through advertisement inviting application which did not indicate that equivalent or higher qualification holders were eligible to apply nor the equivalent qualifications were reflected in the recruitment rules or government orders of the relevant time."
(Emphasis supplied by me)
26. In the case of Sanjay Kumar and others vs. Narinder Verma and others, [(2006) 6 SCC 467 (para-16)], Hon'ble Supreme Court observed that when there was no challenge to the Rules in the writ petition, it was justified to apply the Rules and to uphold the selection process made by the State authorities. Paragraph-8 of the judgment is reproduced below:
"8. The grievance of the diploma-holder appellants in these appeals is that the High Court was wholly unjustified in interfering the process of selection and directing the State to grant higher weightage to degree-holders, although there is no such weightage given to degree-holders under the Rules. Learned senior counsel appearing for the appellants pointed out that the Rules, as framed, had never been challenged in the writ petitions. He urged that once the rules are to be followed, it is not open to the High Court to ignore the rules and introduce a criterion which is not even contemplated by the applicable rules. "
27. The judgment in the case of Parvaiz Ahmad Parry (supra), relied by learned counsel for the petitioners is clearly distinguishable on facts. The facts of that case were that the candidates were possessing B.Sc. Degree in Forestry as one of the major subjects and they also obtained masters degree in Forestry (M.Sc. Forestry) and later acquired higher qualification of masters degree i.e. M.Sc. in Natural Resources and Environment from the University of Michigan, USA, and therefore, they contended that they should be held to be eligible candidates for the post of J & K Forest Service Range Officers Grade-I for which they had applied pursuant to the advertisement. On these facts and considering the relevant Service Rules, Hon'ble Supreme court held (in Para-16, SCC) that "if a candidate has done B.Sc. in Forestry as one of the major subjects and has also done Masters in the Forestry, i.e. M.Sc.(Forestry), then in the absence of any clarification on such issue, the candidate possessing such higher qualification has to be held to possess the required qualification to apply for the post. In fact, acquiring higher qualification in the prescribed subject i.e. Forestry was sufficient to hold that the appellant had possessed the prescribed qualification. It was coupled with the fact that Forestry was one of the appellant's major subjects in graduation, due to which he was able to do his Masters in Forestry." Facts of the present case are entirely different. None of the petitioners have graduation degree in Computer Science more elaborately as mentioned in the Rules. Therefore, possessing the degree of M.C.A. cannot be said to be a higher qualification so as to possess minimum qualification prescribed under the Rules.
28. In view of the above discussion, I do not find any merit in these writ petitions. Therefore, all the writ petitions fail and are hereby dismissed.
Order Date :- 20.07.2018 NLY